Congressional Documents Contradict EPA Claim That It Lacks Authority to Regulate Lead AmmunitionAgency Wrongly Denied Petition to Protect Wildlife From Toxic Lead

WASHINGTON— Congressional documents contradict the Environmental Protection Agency’s recent claim that it doesn’t have the authority to regulate toxic lead bullets and shot that commonly kill and harm bald eagles, trumpeter swans, endangered California condors and other wildlife. The EPA last month denied a petition to ban lead ammunition and require nontoxic alternatives for use in hunting. But the language of the Toxic Substances Control Act, as well as the Senate and House reports on the legislative history and intent of the Act, run counter to the EPA’s claim, in an Aug. 27 letter rejecting the lead ammunition portion of the petition, that it lacks regulatory authority.

“The Environmental Protection Agency’s denial was based on false assumptions and an inexplicable misreading of so-called exemptions in the Act,” said Adam Keats, senior counsel for the Center for Biological Diversity. “Given the EPA’s clear authority and duty under the Toxic Substances Control Act to regulate toxic lead in ammunition to end unnecessary lead poisoning of wildlife and reduce human health risk, it appears that their decision to dodge the issue was politically motivated.”

In fact, according to a House report on the history and intent of the Act, “the Committee does not exclude from regulation under the bill chemical components of ammunition which could be hazardous because of their chemical properties.” The EPA appears to have been influenced by a misleading “legal opinion” sent by the National Rifle Association on Aug. 20. The Center has sent a Freedom of Information Act Request to the EPA asking for all documents related to the agency’s partial denial of the petition.

Last month the Center for Biological Diversity, American Bird Conservancy and other conservation groups petitioned the EPA to ban lead in bullets and shot for hunting, as well as lead in fishing tackle. The petition referenced nearly 500 peer-reviewed scientific papers illustrating the widespread dangers of lead ammunition and fishing tackle. While the EPA is still considering the request for regulation of lead fishing tackle, it denied the portion of the petition regarding lead ammunition regulation. So far, 40 conservation groups in 16 states have signed onto the petition, including organizations representing physicians, veterinarians and zoos, birders, public employees, American Indians and hunters.

“We are going to get to the bottom of the politics behind the EPA decision — we are not going to let the agency simply walk away from the preventable poisoning of birds and other wildlife,” said Jeff Miller, conservation advocate with the Center. “We remain committed to making sure toxic lead is removed from the environment, and we’re continuing our campaign to see that through.”

Lead is an extremely toxic substance that is dangerous to people and wildlife even at low levels. Exposure can cause a range of health effects, from acute poisoning and death to long-term problems such as reduced reproduction, inhibition of growth and damage to neurological development. Wildlife is poisoned when animals scavenge on carcasses shot and contaminated with lead-bullet fragments, or pick up and eat spent lead-shot pellets or lost fishing weights mistaking them for food or grit. Animals can die a painful death from lead poisoning or suffer for years from its debilitating effects. An estimated 10 million to 20 million birds and other animals die each year from lead poisoning in the United States.

The Center for Biological Diversity (www.biologicaldiversity.org) is a national, nonprofit conservation organization with more than 255,000 members and online activists dedicated to the protection of endangered species and wild places.

Background
Section 2605(a)(2)(A)(i) of the Toxic Substances Control Act, passed in 1968 as the federal mechanism for regulating toxic substances, allows the EPA to prohibit the manufacture, processing or distribution in commerce of a chemical substance for a particular use. Lead used in bullets and shot as well as fishing sinkers is a “chemical substance” falling within the scope of the Act. Although certain substances that are regulated under other federal laws are excluded from the definition of “chemical substances,” none of these exclusions are applicable to lead shot or sinkers.

In denying the lead ammunition portion of the petition, the EPA in its Aug. 20 letter claimed “TSCA does not provide the agency with authority to address lead shot and bullets as requested in your petition, due to the exclusion found in TSCA § 3(2)(B)(v).”

The relevant section of the Act exempts “any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code of 1986…” However, section 4181 of the Internal Revenue Code taxes firearms, shells and cartridges. Shot and bullets are explicitly not subject to this tax. According to a 1968 Revenue Ruling (IRS Rev. Rul. 68-463), “The manufacturers excise tax imposed upon sales of shells and cartridges by section 4181 of the Internal Revenue Code of 1954 does not apply to sales of separate parts of ammunition such as cartridge cases, primers, bullets, and powder” (emphasis added). Because shot and bullets, as separate parts of ammunition, are not taxed under section 4181 of the Internal Revenue Code, the Act’s exception does not apply, and lead shot and bullets are properly classified as “chemical substances” subject to its regulation. The petition does not ask EPA to regulate firearms or the manufacture and sale of ammunition, but rather the toxic, separate parts of ammunition, such as bullets and shot.

The Senate and House reports on the legislative history and intent of the Toxic Substances Control Act are equally clear and instructive. The House report explicitly states on page 418: “Although the language of this bill is clear on its face as to the exemption for pistols, revolvers, firearms, shells and cartridges, the Committee wishes to emphasize that it does not intend that the legislation be used as a vehicle for gun control…However, the Committee does not exclude from regulation under the bill chemical components of ammunition which could be hazardous because of their chemical properties” (emphasis added). The Senate report states, “In addition, the term [chemical substance] does not include pesticides, tobacco, or tobacco products, nuclear material (as defined in the Atomic Energy Act), firearms and ammunition (to the extent subject to taxes imposed under section 4181 of the Internal Revenue Code)…”